Lacey/Larkin Defense Rebuts Testimony of Key Federal Witnesses on Cross-Examination

Clarence Darrow questioning William Jennings Bryan (seated) during the first Scopes monkey trial in 1925. Part Deux is now underway in Phoenix, Arizona. (Smithsonian Institution via Wikipedia Commons)
On Friday, attorneys for newspapermen Michael Lacey and Jim Larkin smoothly rebutted the testimony of key prosecution witnesses, including a woman whose ads were posted to Backpage as a minor.

Defense attorneys in the Lacey/Larkin trial fought like feral bobcats on Friday to block inflammatory testimony from a woman trafficked as a teen and advertised in adult ads posted by herself and pimps to the now-defunct classified-listings site, Backpage.com.

Federal Judge Susan Brnovich allowed the woman to testify, but with limits.  In the end, the prosecution’s ruse to prejudice the jury against Michael Lacey, Jim Larkin and their four co-defendants backfired as the defense masterfully turned the situation to its advantage.

Defense attorneys in this Scopes monkey trial of the 21st Century also effectively neutralized the testimony of the woman’s mother, a strident anti-Backpage activist, and scuttled the claims of a California cop involved in the failed “pimping” charges brought against Lacey and Larkin in 2016 by then-California Attorney General Kamala Harris — charges that were twice tossed by superior court judges in The Golden State.

But it was the testimony of the young woman trafficked as a teen that offered the most dramatic moments to date in the trial of Lacey and Larkin, which began September 1.

(Note: I’m not identifying the woman or her mother by name, as the daughter was a minor at the time of the incidents in question. IMHO, she may be a victim, but she is not a victim of Lacey and Larkin, who owned Backpage from 2004-2015. Her abusers committed crimes against her, not the defendants.)

Before the witness took the stand, Larkin-attorney Whitney Bernstein filed a motion to restrict the woman’s testimony, arguing that much of it would be unrelated to any of the 50 specific ads mentioned in the indictment.

If law enforcement cannot determine the age of someone who is directly before them, how is a content moderator supposed to identify a teen through an obscured photo online?

Lacey and Larkin each face up to 100 counts of money laundering, conspiracy and facilitating prostitution in violation of the U.S. Travel Act.

In the pleading, Bernstein noted, “The Government must prove that defendants had the specific intent to violate the Travel Act by facilitating business enterprises involved in prostitution in violation of state law.” She argued that much of the testimony would be “inflammatory” and “irrelevant.”

Federal Judge Susan Brnovich — whose husband, Arizona Attorney General Mark Brnovich, is running as a Republican for the U.S. Senate —  told both parties that she would allow the witness to testify under the umbrella of one of the “conspiracy” charges. But she said the woman’s testimony would not be allowed to stray into graphic detail.

The Runaway and Her Pimps

The jury was clearly riveted by the thin 26-year old who took the stand late Friday morning and testified tearfully about having been under the sway of three different pimps in 2010 during a period when she twice ran away from home at the age of 15.

She said she ran away after being bullied at school for being a “female wrestler.” In Seattle, she was befriended by a female pimp who enticed her into prostitution with the promise of their moving to California together. The female pimp was the first, she said, to post an ad for her on Backpage.

Two male pimps followed, with one posting ads featuring risque photos of her on numerous occasions. She also posted the ads under her pimp’s direction, she said. The ads did not offer sex for money, though such transactions did occur after the fact.

She described how she and her pimp would take extra precautions so that the police would not focus on her ad, such as listing her age as 18 or 19 and using dashes between every numeral in her cell phone number.  Her pimp coached her on this, she said.

“I was 15, I was not the age of consent,” she told prosecutor Kevin Rapp, later adding, “I would be raped for money.”

She also said she was not allowed to keep any of the money from the sex acts. She related that she was ultimately “recovered” through a prostitution sting carried out by local police who answered her ad on Backpage and arrested her.

She later testified in the prosecution of one of her male pimps, who was convicted and imprisoned. With her mother’s help,  she sued Backpage because of what had happened to her and settled out of court for an undisclosed amount.

Following Rapp’s questioning, Bernstein cross-examined the woman, asking if she had ever had any contact or communication with any of the six defendants, pointing them out one by one. To each query, the answer was no.

The woman admitted that she had not met her first pimp through Backpage, and that the ads — posted by either herself or her pimp — lied about her age in violation of Backpage’s posting rules.

She and her pimp also violated other terms of use for the website, such as a promise not to post lewd photos or engage in any illegality on the site. They reposted the ads innumerable times, the woman said, some as many as “70 times.”

“I was forced to do these things,” she told Bernstein.

She admitted to having been arrested on other occasions. Significantly, she was arrested at a hotel as part of a prostitution sting and taken in for questioning. She gave the cops a fake name, and a date of birth that made her 18, when she actually was 15.

Cops questioned her for six hours, trying to identify her or get her to admit her true name and age, but they were unsuccessful. Finally, the police released her without charging her.

Bernstein drilled down. More than one cop questioned the witness in person as she was being held on “suspicion of prostitution.” The police responded to her ad as part of the sting. So they had her ad with photos of her. And they had her.

The woman said the police “suspected” she was underage, but couldn’t prove it.

The not-so-subtle message? If law enforcement cannot determine the age of someone who is directly before them, how is a content moderator supposed to identify a teen through an obscured photo online?

The woman admitted that the police could not charge her based solely on the ad or the fact they caught her in a hotel room as part of a prostitution sting.

“And that’s because none of this is actually [determinative] of prostitution?” asked Bernstein.

“I guess, I don’t know,” she responded.

The Mom and the First Amendment

The woman’s mother was next on the stand, and she mostly discussed her anti-Backpage activism, which was inspired by the experiences of her daughter and involved her testifying before state legislatures and the U.S. Congress. She also brought suit against Backpage on behalf of her daughter.

The mom discussed how she supported a Washington state law that would have made it illegal to “directly or indirectly” publish, disseminate or display a “depiction of a minor” and an explicit or implicit offer of sex for money.

Not knowing the age of the person in the depiction was not a defense under the law. The only defense allowed was having a government or school ID for the photo on file.

Backpage sued and a federal judge enjoined enforcement of the statute in July 2012, finding that it likely violated both the First Amendment and Section 230, the federal law that generally holds interactive website users responsible for the content they post.

On cross, Bernstein challenged the mom on the breadth of the law, which the latter described as a “safety net” for children. But Bernstein pointed out that this in-person ID bill would not just have applied to Backpage, but to countless other sites with adult content, such as Google, Facebook, Twitter, Craigslist, OnlyFans, and so on.

In fact, in his ruling in Backpage.com, LLC v. McKenna, Judge Ricardo Martinez found that even a teenager’s Facebook profile “could also fall under the language” of the bill,  possibly forcing Facebook to “require blanket age verification before photos are uploaded to its site.”

Martinez added, “This kind of restriction could cause dangerous chilling effects across the Internet.”

Lacey’s attorney Paul Cambria then questioned the mother about a statement she alleged Lacey made back in January 2017, when he and other current and former Backpage execs were subpoenaed by a U.S. Senate committee. Lacey and the others refused to testify based on their rights under the First and Fifth Amendments.

The mother testified at the same hearing immediately after Lacey’s panel, and she claims she saw Lacey in the hallway of the building.

During his opening statement, prosecutor Reggie Jones claimed that the mom would tell the jury that “she crossed paths” with Lacey, and Lacey “told her, point-blank, that if these yahoos would keep their fucking mouth shut, we wouldn’t have all these issues.”

Under questioning by Cambria, the mom admitted that she originally put those words in Jim Larkin’s mouth. (The men look nothing alike, btw.) She said that members of the press were around Lacey, but that the comment was “directed at” her and others with her.

She admitted she didn’t know the context of the statement and had not heard what came before or after. She also admitted that she had never read any press articles quoting this statement.

I was at that Senate hearing, reporting on the event for the Phoenix New Times. I heard no such comment and saw no such confrontation. The claim sounds like something deliberately twisted by the prosecution to prejudice the jury against Lacey. The prosecution’s presentation of it smacks of desperation.

After the mom, the California cop who previously had testified about his failed investigation of Backpage in 2015 resumed the stand and took an extended, extreme paddling from Cambria, which I will lovingly detail in my next post.

All in all, it was a good day for the defense.

ICYMI, please read:
Lacey/Larkin Judge Kills Mistrial Motion as Defense Pummels Prosecutors with First Amendment (w/Update)
and
Defense Demands Mistrial in Lacey/Larkin Case after Feds’ Inflammatory, X-Rated Opening Statement (w/Update)

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About Stephen Lemons

Stephen Lemons is an award-winning investigative journalist with more than 20 years of experience covering everything from government corruption to white-supremacist gangs. In addition to Front Page Confidential, his work has appeared in Phoenix New Times, the Los Angeles Times, Salon.com, and the Southern Poverty Law Center’s Intelligence Report magazine.

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